Abet Justice LLC v. First America Trustee Servicing Solutions, LLC

Presently
before the court is counterdefendant Sunridge Heights's
(the “HOA”) motion for summary judgment. (ECF No.
106). Defendant/counterclaimant Bank of New York Mellon fka
Bank of New York as trustee for the certificate-holders of
CWMBS, Inc., CHL mortgage pass-through trust 2007-J2 mortgage
pass-through certificates, series 2007-J2
(“BNYM”) filed a response (ECF No. 125), to which
the HOA replied (ECF No. 127).

Also
before the court is a motion for summary judgment filed by
defendants/counterclaimants BNYM, First America Trustee
Servicing Solutions, LLC's (“FATSS”), and
Residential Credit Solutions, Inc. (“RCS” and
collectively, with FATSS and BNYM, as
“defendants”). (ECF No. 107). The HOA filed a
response (ECF No. 124), to which defendants replied (ECF No.
128).

Also
before the court is pro se
plaintiff/counterdefendant Guetatchew Fikrou's
(“Fikrou”) motion for summary judgment. (ECF No.
118). BNYM filed a response. (ECF No. 122). Fikrou has yet to
reply, and the period to do so has since passed.

I.
Facts

This
case involves a dispute over real property located at 2138
Montana Pine Drive, Henderson, Nevada 89052 (the
“property”).

On
March 20, 2007, Shannon Moore obtained a loan from
Countrywide Home Loans, Inc. Mortgage in the amount of $556,
000.00 to purchase the property, which was secured by a deed
of trust recorded on April 26, 2007.

The
deed was assigned to BNYM via an assignment of deed of trust
recorded on November 9, 2010.[1] An assignment of deed of trust
was recorded on March 7, 2014, clarifying the assignment to
BNYM.

On
September 11, 2013, defendant Nevada Association Services,
Inc. (“NAS”), acting on behalf of the HOA,
recorded a notice of delinquent assessment lien, stating an
amount due of $4, 062.92. (ECF No. 49 at 51). On October 28,
2013, NAS recorded a notice of default and election to sell
to satisfy the delinquent assessment lien, stating an amount
due of $4, 988.64. (ECF No. 49 at 53).

On
March 17, 2014, NAS recorded a notice of trustee's sale,
stating an amount due of $5, 867.36. (ECF No. 49 at 57). BNYM
did not bid or pay the noticed amount. On April 11, 2014,
Abet Justice, LLC (“Abet”) purchased the property
at the foreclosure sale for $42, 100.00. A trustee's deed
upon sale in favor of Abet was recorded on April 14, 2014.
(ECF No. 49 at 59). Fikrou asserts that he is the owner of
Abet. (ECF No. 1).

On
February 9, 2015, defendants filed an answer. (ECF No. 33).
On April 29, 2015, defendants filed an amended answer and
counterclaim, alleging six causes of action: (1) quiet
title/declaratory judgment; (2) preliminary and permanent
injunction against Fikrou; (3) wrongful foreclosure against
NAS and the HOA; (4) negligence against the HOA and NAS; (5)
negligence per se against the HOA and NAS; and (6)
breach of the covenant of good faith and fair dealing against
the HOA. (ECF No. 49). On March 23, 2016, the court dismissed
BNYM's counterclaims (2) through (6). (ECF No. 104).

In the
instant motions, the HOA, defendants, and Fikrou have all
filed motions for summary judgment. The court will address
each as it sees fit.

II.
Legal Standard

The
Federal Rules of Civil Procedure allow summary judgment when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that “there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a
matter of law.” Fed.R.Civ.P. 56(a). A principal purpose
of summary judgment is “to isolate and dispose of
factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986).

For
purposes of summary judgment, disputed factual issues should
be construed in favor of the non-moving party. Lujan v.
Nat'l Wildlife Fed., 497 U.S. 871, 888 (1990).
However, to be entitled to a denial of summary judgment, the
nonmoving party must “set forth specific facts showing
that there is a genuine issue for trial.” Id.

In
determining summary judgment, a court applies a
burden-shifting analysis. The moving party must first satisfy
its initial burden. “When the party moving for summary
judgment would bear the burden of proof at trial, it must
come forward with evidence which would entitle it to a
directed verdict if the evidence went uncontroverted at
trial. In such a case, the moving party has the initial
burden of establishing the absence of a genuine issue of fact
on each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000) (citations omitted).

By
contrast, when the nonmoving party bears the burden of
proving the claim or defense, the moving party can meet its
burden in two ways: (1) by presenting evidence to negate an
essential element of the non-moving party's case; or (2)
by demonstrating that the nonmoving party failed to make a
showing sufficient to establish an element essential to that
party's case on which that party will bear the burden of
proof at trial. See Celotex Corp., 477 U.S. at
323-24. If the moving party fails to meet its initial burden,
summary judgment must be denied and the court need not
consider the nonmoving party's evidence. See Adickes
v. S.H. Kress & Co., 398 U.S. 144, 159- 60 (1970).

If the
moving party satisfies its initial burden, the burden then
shifts to the opposing party to establish that a genuine
issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986). To establish the existence of a factual dispute, the
opposing party need not establish a material issue of fact
conclusively in its favor. It is sufficient that “the
claimed factual dispute be shown to require a jury or judge
to resolve the parties' differing versions of the truth
at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.
1987).

In
other words, the nonmoving party cannot avoid summary
judgment by relying solely on conclusory allegations that are
unsupported by factual data. See Taylor v. List, 880
F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposition must
go beyond the assertions and allegations of the pleadings and
set forth specific facts by producing competent evidence that
shows a genuine issue for trial. See Celotex, 477
U.S. at 324.

At
summary judgment, a court's function is not to weigh the
evidence and determine the truth, but to determine whether
there is a genuine issue for trial. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The evidence of the nonmovant is “to be believed, and
all justifiable inferences are to be drawn in his
favor.” Id. at 255. But if the evidence of the
nonmoving party is merely colorable or is not significantly
probative, summary judgment may be granted. See Id.
at 249-50.

III.
Discussion

As an
initial matter, the court acknowledges that Fikrou's
pleadings were filed pro se and are therefore held
to less stringent standards. Erickson v. Pardus, 551
U.S. 89, 94 (2007) (“A document filed pro se
is to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.”) (internal quotation marks and citation
omitted). However, “pro se litigants in an
ordinary civil case should not be treated more favorably than
parties with attorneys of record.” Jacobsen v.
Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

Under
Nevada law, “[a]n action may be brought by any person
against another who claims an estate or interest in real
property, adverse to the person bringing the action for the
purpose of determining such adverse claim.” Nev. Rev.
Stat. § 40.010. “A plea to quiet title does not
require any particular elements, but each party must plead
and prove his or her own claim to the property in question
and a plaintiff's right to relief therefore depends on
superiority of title.” Chapman v. Deutsche Bank
Nat'l Trust Co., 302 P.3d 1103, 1106 (Nev. 2013)
(internal quotation marks and citations omitted). Therefore,
for plaintiff to succeed on its quiet title action, it needs
to show that its claim to the property is superior to all
others. See also Breliant v. Preferred Equities
Corp., 918 P.2d 314, 318 (Nev. 1996) (“In a quiet
title action, the burden of proof rests with the plaintiff to
prove good title in himself.”).

A.
The HOA's Motion for Summary Judgment (ECF No.
106)

In its
motion, the HOA moves for summary judgment of the quiet title
claim in favor of Fikrou. (ECF No. 106). The HOA asserts that
Abet and Fikrou purchased the property at the foreclosure
sale and ...

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